Bench Memos

“Falling Down on the Job”

That’s the title of my essay in the new issue of the Weekly Standard on the failure of some state AGs to defend state marriage laws. Here are my concluding paragraphs:

In the long run, those on both sides of the marriage debate ought to recognize that much more is at stake than the battle over marriage. The very concept of the rule of law—of a realm of impartial decision-making according to neutral principles set forth in advance—depends on maintaining as distinct a line as possible between law and politics. To be sure, Supreme Court decisions of recent decades have done much to obscure that line. The indeterminate nature of the “living Constitution” approach that at least five justices apply means that intelligent lawyers can plausibly reach a broad range of legal conclusions on any open federal constitutional issue.

If state attorneys general come to believe, as Herring purports, that they have discretion to refuse to defend state constitutional provisions and statutes that conflict with their own subjective legal judgments, then state laws will survive only at their sufferance. The ensuing political pressure on state attorneys general to exercise that veto power will intensify. And the rule of law may fall beyond repair.

In his courageous 2011 letter immediately resigning his lucrative partnership in King & Spalding, Paul Clement offered some words of wisdom that Mark Herring and others reluctant to defend state marriage laws could learn from. The adversary system of justice and the rule of law, Clement explained, depend on lawyers not abandoning a client “because the client’s legal position is extremely unpopular in some quarters.” As for the desire to be “on the right side of history,” Clement observed, “When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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